Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W. Washington, D.C. 20507.

(The Digest acknowledges the assistance of Pamela O'Leary in the production of this issue. -Ed)

SELECTED EEOC DECISIONS

Class Certification Granted. The Commission affirmed the Administrative Judge's (AJ's) decision to certify a class of former striking members of the Professional Air Traffic Controllers Organization (PATCO), who were over 40 and who were not selected for Air Traffic Control Specialist positions. The evidence showed that the agency's headquarters disseminated, to all regions, targets for hiring from various sources, including the PATCO Inventory, so that a sufficient nexus existed between complainant's claim and those of other potential 3,000 proposed class members. Thus, complainant met the requirements of commonality, typicality, and numerosity. Finally, complainant was represented by an attorney who practiced exclusively in the area of employment litigation. David McCullum, et al, v. Department of Transportation, EEOC Appeal No. 07A56055 (October 26, 2006), request for reconsideration denied, EEOC Request No. 0520070177 (January 5, 2007).

Certification Denied. The class agent alleged that the agency discriminated against all racial, religious, and non-European minorities when it eliminated minority applicants for employment and promotion, used veterans' preference in hiring, and allowed for re-advertisement of vacancies. An AJ found that the class agent had no evidence to support a claim of common policy or claim that other class members had not been selected for similar reasons. Thus, the class agent did not satisfy the criteria for commonality and typicality. The AJ also found that the class agent failed to show numerosity by not providing an estimate of the total number of class members. In affirming the AJ, the Commission also agreed that the class agent lacked the training or experience to adequately represent the class. Nor had he retained counsel with such qualifications. Accordingly, complainant, as class agent, failed to show adequacy of representation. Fazal Rahman v. Department of Agriculture, EEOC Appeal No. 0120050945 (February 9, 2007), request to reconsider denied, EEOC Request No. 0520070333 (April 24, 2007).

No Classwide Discrimination Found. The Commission affirmed the AJ's finding on the merits of no classwide racial (Black) discrimination regarding promotions. The Commission affirmed the finding that without probative statistical evidence or other cumulative evidence of class-based discrimination, the class failed to establish a prima facie case of disparate treatment. The Commission also affirmed the sanctions that the AJ imposed on the class for class counsel's "deceptive and dilatory" practices regarding the identity of a supposed expert witness, a statistician. As a result of class counsel's delay, the AJ precluded the class from offering expert testimony or expert evidence at the hearing with respect to the class claims. The Commission also affirmed the AJ's rejection of class counsel's proffer of his own statistical deviation analyses because it would be "highly improper and irregular" for class counsel to serve both as counsel and expert witness. In addition, the Commission affirmed the AJ's rejection of the class' witness list because, despite being given repeated opportunities, the class did not provide a witness list with a synopsis of each witness' proffered testimony. The Commission rejected the contention by the class agent that class counsel was incompetent, raised for the first time on appeal. Artimese Epps, et al. v. Department of Agriculture, EEOC Appeal No. 0120050745 (February 9, 2007).

Compensatory Damages Cannot Be Awarded on Appeal Where Complainant Failed to Request Such Damages Prior to Appeal. An AJ found that complainant was subjected to a hostile work environment based on retaliation, but was not entitled to compensatory damages because he did not allege or establish any damages he sustained. The Commission stated that it cannot award compensatory damages where a complainant did not previously request such damages in his formal complaint or at any time prior to appeal or did not present evidence of such damages. Timothy McLain v. Department of the Army, EEOC Appeal No. 0120053362 (January 19, 2007).

No Age Discrimination Found in Nonselection: Law Enforcement Exception. Complainant alleged that the agency discriminated against him based on age, 40, when he was not selected for a Criminal Investigator position. The vacancy announcement indicated that applicants must not exceed the maximum entry age of 37. In addition, the Lead Personnel Management Specialist stated that the agency chose to use the Outstanding Scholar Program (OSP) to fill the position, because the agency wanted to get applicants who were "a little bit younger for succession planning." The Commission initially noted that federal regulation provides an applicable exception to the Age Discrimination in Employment Act of 1967 (ADEA), as amended, allowing an agency to set a maximum age within which an original appointment may be made to a law enforcement officer position. Further, while the Specialist made a statement indicating a potentially inappropriate rationale for utilizing the OSP hiring criteria, the evidence showed that the Specialist was not involved with the actual selection process. In addition, the hiring criteria did not eliminate complainant, as his name was referred to the selecting official for consideration. Finally, complainant failed to show that the agency's stated reason for his nonselection, that is, that it chose to select applicants from the New York area due to the limited time available to fill the position, was a pretext for age discrimination. Joseph P. Kenney v. Environmental Protection Agency, EEOC Appeal No. 0120053879 (October 26, 2006).

Age Discrimination Found in Nonselection. Complainant (over 40), an Accounting Technician at the agency, applied for the position of Budget Analyst and was one of six applicants found to be qualified; however, she was not selected in favor of two selectees (both under 40) who declined the position. According to the agency, the Selecting Official and other members of the selection committee stated that complainant did not demonstrate that she had the necessary knowledge and skills for the position and that her application contained misspellings, grammatical errors, and fragmented sentences, which indicated poor ability to communicate effectively in writing. They also purportedly had first-hand knowledge of her job performance. Complainant's first-line and second-line supervisors testified that her performance was excellent; that complainant had received an "outstanding" annual performance rating for seven consecutive years and had received bonuses. The first-line supervisor also questioned where the Selecting Official obtained her information and averred that it was completely inaccurate. The Commission noted that the record contained a copy of complainant's application for the position at issue and that it did not contain misspellings, grammatical errors, or fragmented sentences. The Commission concluded that complainant provided persuasive evidence that the agency's articulated reasons for her nonselection were a pretext for unlawful age discrimination when she was not selected for the Budget Analyst position. The Commission ordered the agency to offer complainant the position or a substantially equivalent position and determine appropriate back pay. Lynn A. Windsor v. Department of Agriculture, EEOC No. 0120062755 (January 31, 2007), request to reconsider denied, EEOC Request No. 0520070336 (May 7, 2007).

No Equal Pay Act Violation Found: Agency Relied on Factors Other Than Gender . Complainants, who served as Medical Records Technicians (MRTs), alleged that the agency discriminated against them on the basis of gender when it hired a male at a higher salary to do the same work. While complainants established a prima facie case by showing that they received less pay than the male employee for equal work requiring equal skill, effort, and responsibility, the agency asserted that it relied upon factors other than gender in setting the male employee's salary. Specifically, the agency stated that he was given a higher starting salary to match the salary he last received in the private sector. The Commission noted that the complainants failed to rebut the agency's assertion that it was difficult to find highly qualified applicants for the MRT positions, and that the male applicant's education and broad private sector experience in the field made him an especially desirable candidate. Traci Jackson v. Department of Veterans Affairs, EEOC Appeal No. 01A60193 (June 26, 2006); Dorothy Corbin v. Department of Veterans Affairs, EEOC Appeal No. 01A60194 (June 26, 2006).

No Disability Discrimination Found: Failure to Meet Qualification Standards. Complainant applied for a position in the Foreign Service, but was denied medical clearance for worldwide availability due to several medications that he took for bipolar disorder and schizophrenia. In addition, complainant acknowledged having three psychotic episodes that required hospitalization. On appeal, the Commission noted that being available for worldwide posting is an essential function of the Foreign Service, and that complainant had not established that he was a qualified individual with a disability for purposes of the position. The Commission initially stated that, under the Rehabilitation Act, a qualification standard, test, or other selection criteria that screens out or tends to screen out, an individual with a disability or class of individuals with disabilities, on the basis of disability, is unlawful unless it is shown to be job related and consistent with business necessity. The Commission found, however, that the agency met the burden of showing that the requirement for worldwide availability met this standard. In this case, the agency made its determination not to select complainant by conducting an individualized assessment of his condition. The record showed that complainant repeatedly and unilaterally stopped taking his medication, resulting in his becoming, according to a doctor, psychotic. Thus, the Commission found that complainant was not subjected to disability discrimination. Patrick Jean-Julien v. Department of State, EEOC Appeal No. 0120050340 (January 10, 2007).

Disability Discrimination Found: Breach of Medical Confidentiality . The Commission found that complainant was subjected to disability discrimination when the agency disclosed to an employee whom she was training her personal medical information. Specifically, the Commission found that the Officer in Charge disclosed the fact that complainant had carpal tunnel syndrome. In addition, the Postmaster made comments in front of co-workers and customers related to complainant's lifting restriction. The Commission found that these two incidents violated the Rehabilitation Act and ordered the agency to conduct a supplemental investigation with regard to damages and provide training for the relevant management officials. Julie A. Manns v. United States Postal Service, EEOC Appeal No. 01A53044 (June 9, 2006).

Disability Discrimination Found in Agency Hiring Process. Complainant applied for the position of Building Equipment Mechanic. During an interview for the position, she was required to complete three medical assessment forms, which included questions as to whether she had a medical condition for which she was currently being treated; and whether she had a medical disorder or physical impairment that could interfere with the full performance of her position. In addition, one of the forms asked complainant to indicate whether she had certain specific medical conditions. Following her selection for the position, complainant was required to complete a pre-employment medical assessment. Based upon the recommendations of complainant's physician, that she work in a self-paced environment with limited personal contact, the agency found that complainant was not qualified for the position.

The Commission initially noted that the agency violated the Rehabilitation Act by requiring complainant to complete the medical assessment forms during her interview. The Commission noted that complainant had not been offered the position at that time. Further, the forms did not make a sufficient attempt to narrowly tailor the questions to the position at issue, but asked general questions about the applicants' medical conditions and major life activities. Nevertheless, the Commission concluded that complainant was not subjected to disability discrimination when the agency rescinded the offer of employment. Despite her answers on the medical assessment forms, complainant was selected for the position. The agency then permissibly required her to complete a pre-employment medical assessment. Complainant presented no evidence to dispute the agency's assertion that she was not qualified for the position and offered no accommodation that would enable her to perform its essential functions. The agency withdrew the job offer solely due to restrictions placed on complainant by her treating physician. Thus, complainant failed to show that she was qualified to perform the essential functions of the position. The agency was ordered to review its pre-employment process and revise its pre-employment forms and procedures to ensure compliance with the Rehabilitation Act. Frances Darcangelo v. United States Postal Service, EEOC Appeal No.01A50399 (December 2, 2005).

National Origin and Race Discrimination Found in Termination. The Commission found that complainant, a Store Associate, was subjected to race (Asian) and national origin (Filipino) discrimination when she was terminated from employment after an audit disclosed that she received two unauthorized price adjustments at the base exchange where she worked. According to the record, other Associates, outside of complainant's protected classes, committed similar acts regarding price adjustments but were not terminated. Further, Associates did not receive any real training regarding price adjustments. Finally, the agency's determination was subjective as to which mistakes discovered during the audit process should be investigated, which were honest mistakes or training issues and which were dishonest acts. The Commission ordered the agency to provide complainant with back pay and awarded her $53,000.00 in compensatory damages. Alicia Claflin v. Department of Defense, Army & Air Force Exchange Service (AAFES), EEOC Appeal No. 07A50069 (May 26, 2006).

Race Discrimination Found in Discipline. The Commission found that complainant was subjected to race discrimination (African-American) with regard to a disciplinary action. Complainant initially was accused of being away from his work after a supervisor stated that complainant was observed in the cafeteria watching television. Complainant acknowledged that he was watching a broadcast of a Martin Luther King Day celebration. The agency then proposed to terminate him. The notice of proposed termination included a charge that complainant had threatened an employee who he believed had "snitched" on him. The proposed removal was subsequently reduced to a 30-day suspension, 16 of which involved a paper suspension with no loss of pay. The Commission noted that nothing in the record confirmed the other employee's claim that complainant had threatened her. Further, there was no evidence showing that complainant received progressive discipline or that employees outside of complainant's protected class receive proposed removals for taking unauthorized extended breaks. Thus, the agency was ordered to pay complainant $1,000.00 in compensatory damages and remove from complainant's personnel records all references to the proposed removal. George Robinson v. United States Postal Service, EEOC Appeal No. 0720060062 (January 16, 2007).

Race Discrimination Found in Discipline and Nonselection . Complainant filed a formal complaint alleging that he was discriminated against on the basis of race (Black), when he was subjected to various disciplinary actions and was not selected for a Conveyor Operator position. Complainant received counseling for various actions, including sleeping during lunch; using a particular restroom; missing work; using a cell phone on the work floor; and using a copy machine for personal use. In addition, complainant received two notices of suspension for leaving his work area, arriving late to work, and being insubordinate. Complainant received a final notice of suspension for failure to follow directions.

The Commission noted that, while the agency articulated legitimate, nondiscriminatory reasons for the various disciplinary actions, complainant was able to show by a preponderance of the evidence that the reasons were a pretext for discrimination. The record included testimony from several employees that others outside of complainant's protected group, who had engaged in similar conduct, were not disciplined. The Commission noted that the agency failed to set forth, with sufficient clarity, any legitimate reason why complainant alone was repeatedly disciplined, while others who were involved in the same cumulative actions were not subjected to any disciplinary action.

With regard to the nonselection, the Commission found that the agency's stated reason: complainant's poor interview, could not be the reason for the action because the interview did not take place until after the selection was made. Further, the record did not support the agency's assertion that the selectee was the only one who worked as a Conveyor Operator, as the selectee testified only that she helped the Conveyor Operators and learned by watching them-not that she had actually performed the duties of the position. The Commission ordered the agency to expunge specific documents from complainant's personnel records, reimburse him for lost wages, and offer him the Conveyor Operator position. Mancy Howard, Jr. v. Department of Defense, EEOC Appeal No. 01A51092 (June 1, 2006).

Reprisal Discrimination Found in Supervisor's "Inappropriate" Email. The Commission found that complainant was subjected to reprisal when a supervisor sent an email to all employees in complainant's section, asking for statements in the supervisor's defense of the EEO complaint filed against him by complainant. The Commission characterized the email as "inappropriate" and stated that it constituted the kind of activity that was reasonably likely to deter complainant or others from engaging in protected activity. The agency was ordered to provide training to all management officials at complainant's facility with regard to reprisal discrimination. Marsha L. Conlin v. Department of Veterans Affairs, EEOC Appeal No. 0120055310 (December 5, 2006).

Reprisal Discrimination Found in Discipline and Other Issues . The Commission affirmed an AJ's finding that complainant was subjected to reprisal with regard to a number of matters. Specifically, complainant was retaliated against for participating in the EEO process when he was suspended for seven days for feeding a dog; denied time to serve as a blood donor; not paid for travel time to attend mediations as a representative; when the agency changed his break location; issued him a letter of warning for failure to contact management to report that he would be out sick; and initially denied him 97 hours of sick leave. The Commission noted that other employees were not disciplined or required to follow the procedures cited by the agency in support of its actions. The agency was ordered to pay complainant compensatory damages and reimburse him for the time used to donate blood and travel to mediations. Jeffrey S. Miller v. United States Postal Service, EEOC Appeal No. 01A51723 (June 13, 2006).

Race Discrimination and Retaliation Found in Nonselection. The Commission found that complainant was subjected to race (African-American) and reprisal discrimination when she was not selected for the Atlanta Management Development Program (AMDP). The Commission initially noted that complainant's participation in the EEO process occurred in close proximity to the time that her immediate supervisor provided his input to the recommending official regarding the selection process (although the complaint was filed in 2002, it was still pending at the time of the nonselection in 2004). Thus, complainant established a prima facie case of reprisal. In addition, complainant submitted evidence that the agency's given reason for her nonselection, that the selectee was a better qualified candidate, was a pretext for discrimination. Specifically, the record showed that complainant's qualifications were demonstrably superior to those of the selectee. The agency was ordered to place complainant into the next available AMDP and pay her $10,000.00 in compensatory damages. Mary H. Scott v. Social Security Administration, EEOC Appeal No. 0720060004 (October 26, 2006).

Gender Discrimination: Agency Liable for Hostile Work Environment. Complainant, a Customer Service Representative, indicated fear of her Lead Manager who had raised his fists against her. An AJ found that the Lead Manager had subjected complainant to a hostile work environment, based on his numerous sex-based statements he made towards women including comments about the number of females working in the office, as well as his treatment of female subordinates. The AJ further found that the Team Manager did not take appropriate action when informed that complainant felt threatened by the Lead Manager. The agency was ordered to restore administrative leave to complainant and train all responsible employees concerning the identification, prevention, and correction of sex-based harassment. Denise Felton v. Department of the Treasury, EEOC Appeal No. 0720060046 (December 5, 2006).

Commission Differs With MSPB: Finds Religious Discrimination and Retaliation . The Commission differed with the Merit Systems Protection Board's (MSPB's) finding that petitioner was not subject to religious discrimination or reprisal when he was removed from employment. Petitioner, a Roman Catholic priest, worked for the agency as a chaplain. According to the record, he repeatedly raised concerns with management regarding what he perceived as incongruence between the practices and teachings of the Roman Catholic faith and the policy of "generic chaplaincy" advocated by his supervisor. Specifically, he indicated that the agency's Catholic patients were being unfairly ill-served by being ministered to by non-Catholic clergy. Petitioner and his supervisor also disagreed as to the supervisor's requirement that petitioner attend entry-level training that was not required of other staff chaplains. Petitioner indicated that attending the training would take him away from servicing Catholic patients who, he believed, were already lacking in support from the agency. Petitioner was subsequently terminated for failure to document patient visits, failure to comply with training requirements, and failure to follow supervisory instructions.

The MSPB found no discrimination with regard to petitioner's termination. The Commission, however, disagreed with the Board. While the Commission found that the agency articulated legitimate, nondiscriminatory reasons; that is, petitioner's failure to comply with training requirements and follow supervisory instructions concerning the return of his office key when he was under suspension, petitioner met his burden of showing that the agency's reasons were pretextual. Specifically, at the time the supervisor insisted that petitioner take Clinical Pastoral Education (CPE) training, the agency had no such policy regarding the CPE requirement. In addition, the Commission found suspect the agency's subsequent decision to initiate a written policy regarding the CPE certification requirement, especially in light of evidence that the supervisor did not impose the requirement on a rabbi until one year after the supervisor imposed it on petitioner. The record also included testimony from a contract chaplain who indicated that the supervisor expressed animosity toward Roman Catholics, including telling jokes about Roman Catholic priests being pedophiles. Finally, the Commission found that the issue of petitioner failing to follow instructions concerned the alleged failure to turn in his office key during his suspension would not have occurred had the supervisor not manipulated the training issue in order to get rid of petitioner. Thus, the Commission concluded that petitioner had been successful in showing that the agency's action was based on unlawful retaliation for his prior protected EEO activity and his religion. Henry Heffernan v. Department of Health and Human Services, EEOC Petition No. 0320060079 (January 24, 2007).

Petition Granted: Recalculation of Back Pay Ordered . In a previous appellate decision, the Commission found that petitioner was subjected to discrimination when he was removed from employment, and ordered the agency to, among other things, retroactively promote petitioner to a GS-12 Clinical Psychologist position; and award her appropriate step increases and back pay. Subsequently, petitioner asserted that the agency failed to comply with the Commission's order. Upon review of the record, the Commission found no evidence that the agency properly documented petitioner's promotion and subsequent grade and step increases with a Notification of Personnel Action form for these personnel actions. Further, the agency incorrectly deducted unemployment compensation benefits and petitioner's gross earnings from the award of back pay. The evidence indicated that petitioner was not required to repay unemployment compensation benefits. In addition, while outside earnings are properly deducted from an award of back pay, the deduction should be based upon any gross earnings less associated business losses and ordinary and necessary business expenses. Thus, the agency was ordered to provide petitioner with appropriate Notification of Personnel Action forms; and recalculate the award of back pay. Susan Bergmann v. Department of Justice, EEOC Petition No. 04A60022 (October 19, 2006).

Petition Granted: Agency Ordered to Pay for Lost Overtime. In a previous appellate decision the Commission found that petitioner was discriminated against in reprisal for prior EEO activity when he was issued a letter of warning and ordered the agency to pay petitioner for lost overtime work. Subsequently the agency determined that petitioner was not in fact entitled to such payment, as he had received "equitable overtime" during the specified period as compared to other employees. In reviewing the record, the Commission initially noted that the agency failed to provide evidence concerning employees on the same overtime-desired lists as petitioner. The Commission, therefore, compared petitioner's earned overtime to that of the one individual named by the agency who, by affidavit, confirmed that his name was on the applicable overtime desired lists during the period in question. That individual earned more overtime than petitioner, and, as such, the Commission found that petitioner was entitled to nearly 20 hours of lost overtime. Daron Crye v. United States Postal Service, EEOC Petition No. 04A60019 (June 26, 2006).

Agency Fails to Provide "Make Whole" Relief, as EEOC Ordered . Subsequent to a finding of discrimination based on his gender when he was not selected for a paralegal position, and an order that complainant be retroactively placed in the GS-9 position with back pay, as well as be promoted to GS-11 within one year of placement in this position, complainant filed a petition for enforcement (PFE). Complainant (petitioner) claimed that the agency failed to fully comply with EEOC's order when the agency paid him at the GS-9 rate while he was on the agency's shared leave program, instead of at the GS-11 level. In his PFE, petitioner sought the difference in pay. It was undisputed that, due to illness and the exhaustion of available leave, petitioner participated in the agency's leave share program from August 9, 2003, through March 1, 2004.

The Commission found that the agency did not comply with EEOC's order for relief, paying him at the lower grade level. The Commission found that the selection at issue occurred on or about March 1, 2000, such that petitioner's career ladder promotion to GS-11 should have been in effect. The Commission rejected the agency's suggestion that the higher pay level would result in double payment or violate agency policy. The Commission concluded that the agency would merely be paying petitioner's regular salary in the form of leave through the leave share program. The Commission noted that, under back pay regulations, included in the amount of back pay, the agency must also grant any sick and annual leave for a period of incapacitation if it was the result of illness or injury. Accordingly, the Commission granted his PFE and ordered the agency to calculate and pay petitioner the difference between the actual rate of pay given petitioner and the rate of pay at the GS-11 level for the period August 9, 2003, to March 1, 2004, as well as any additional attorney's fees for work done in connection with the PFE. Welford Burton v. Office of Personnel Management, EEOC Petition No. 0420050029 (February 2, 2007).

EEOC Orders Agency to Investigate Additional Relief . Having found age discrimination, the Commission ordered the agency to award appropriate relief including a retroactive promotion with any subsequent step increases on the GS-14 level petitioner would have received absent discrimination. EEOC also ordered the agency to determine the appropriate amount of back pay with interest and any other benefits due petitioner in accordance with the Commission's regulations. In the instant PFE, petitioner acknowledged that the agency calculated and remitted back pay to him as ordered; however, he contended that the agency had failed to issue him a year-end performance and/or special act award as that given to every other GS-14 at the facility.

The Commission noted that performance and special pay act awards are based on the quality of an individual's actual performance and to award otherwise would be purely speculative. Accordingly, a back pay award provided as a result of a finding of discrimination in a nonselection case should be calculated as if petitioner had performed satisfactory work. Thus, if the agency issued a performance and/or special act award to all comparable GS-14s at the facility during the relevant time period, including those who were rated at the "satisfactory" or "fully satisfactory" performance level, the Commission found that logically the agency may have awarded petitioner but for the discrimination. However, in the absence of an adequate record, the Commission remanded the issue to the agency for a supplemental investigation. Ramiro Tellez v. Department of the Army, Petition No. 0420070006 (January 23, 2007).

Attorney's Fees and Compensatory Damages. The Commission reduced the amount of fees requested by complainant for a second attorney who assisted in her case. The Commission noted that, while the second attorney submitted a bill for 90.25 hours, including time spent at a deposition and the two-day hearing, the record showed that the attorney did not play an active role at those proceedings. Instead, the attorney appeared to be more of a consultant to the first attorney. The second attorney's billing statement reflected numerous telephone calls to the first attorney; however, there were no calls to the complainant. The Commission found nothing unusually difficult or complex about the case. Accordingly, the Commission denied the second attorney's request for 34 hours spent at the deposition and hearing. With regard to the first attorney, the Commission found that she was entitled to the full amount claimed in preparation for the hearing since she had presented the case by herself. However, the Commission reduced the first attorney's claim for time spent during the pre-complaint process.

With regard to the issue of damages, the Commission found that complainant was entitled to an award of $10,000.00 in non-pecuniary damages for pain and suffering. According to the record, the agency denied complainant accommodation for approximately five months causing her to re-injure her rotator cuff. She was required to undergo extensive medical treatment, including painful injections, and had permanently lost range of motion in her shoulder due to the rotator cuff work injuries. Further, a co-worker indicated that she saw complainant crying after she had been subjected to harassing treatment by her supervisor. Mary Nolan v. Department of Veterans Affairs, EEOC Appeal No. 07A40119 (June 7, 2006).

Commission Affirms AJ's Award of Monetary Sanctions . The Commission affirmed an AJ's decision awarding complainant attorney's fees and costs ($612.50) in connection with the appeal, but only to the extent such fees pertained to the scope of attorney's fees awarded as a sanction. The Commission found that the AJ did not abuse her discretion and "made perfectly clear her expectation that the agency was to provide certified responses to complainant's interrogatories." However, the agency refused to provide information clearly within its sole control that could easily have been made available. The agency also only provided reasons for its objections after complainant filed her Motion to Compel. The AJ also noted that the agency refused to identify individuals in complainant's work unit; refused to identify anyone who was responsible for pay and leave (P & L) administration, even respecting complainant's facility; and claimed it did not know what percentage of time complainant performed P & L administration duties. Nor did the agency tell complainant where such information could be found. The AJ also clearly set forth attorney's fees as a possible sanction in her Acknowledgement and Order issued to both parties and applied the least sanction necessary to respond to the agency's failure to show good cause for its actions and equitably remedied complainant.

In this decision, the Commission discussed the legal underpinning for its authority, through its AJs, to impose monetary sanctions against federal agencies. In this regard the decision cited, inter alia, Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005); 42 U.S.C. 2000e-16(c); and West v. Gibson, 527 U.S. 212 (1999) (EEOC is empowered to award compensatory damages to complainants in the administrative process).

In Matheny, supra, EEOC determined that Section 717 of the Civil Rights Act of 1964, prohibiting employment discrimination by agencies, provides for a waiver of the doctrine of sovereign immunity. To the extent federal agencies are required "to comply with such rules, regulations, orders, and instructions" issued by EEOC, and which EEOC "deems necessary and appropriate to carry out its responsibilities," EEOC determined that delegating to its AJs authority to impose sanctions on both complainants and agencies was a necessary and appropriate remedy that effectuates the Commission's policies.

In support of its appeal, the agency asserted the doctrine of sovereign immunity and relied, in relevant part, on a Department of Justice (DOJ) memorandum averring that EEOC is barred from imposing monetary sanctions against federal agencies for violating AJ orders. In rejecting the defendant agency's argument, EEOC emphasized that DOJ recognized that EEOC has the authority to enforce its orders "[a]nd arguably, EEOC may have some inherent power to impose some type of sanctions designed to maintain the integrity of its proceedings even against federal agencies. One could infer this from the fact that Congress is presumed to have made its statutory scheme effective." Matheny, supra (citing DOJ Memorandum at 8).

EEOC noted that, under the Equal Access to Justice Act, federal courts have found that the federal government may be assessed attorney's fees and costs as sanctions for abuses in the litigation process. And, as required by Executive Order No. 12,067 Section 1-303, EEOC consulted with "the affected Federal departments and agencies during the development of any proposed rules, regulations…," and the regulations were then approved by the Executive Office of the President. Matheny, supra. In this regard, the Commission cited its own regulations governing AJ hearings, as well as its Management Directive 110 pertaining to 29 C.F.R. 1614 regarding AJ hearings. The Commission declared that it has exercised its inherent authority to enforce its Part 1614 Regulations by affording AJs broad authority to conduct hearings and thereby impose monetary sanctions. This broad authority includes the power of AJs to conduct hearings and develop the administrative record, which includes overseeing discovery and ordering supplemental investigations.

Finally, the Commission stated that AJs possess the authority to order a party to pay attorney's fees and costs to prevent a party's future misconduct and must tailor their orders to each situation to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. Cindy B. Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007).

(In the following decisions, the Commission found that complainant's claims failed to state a claim upon which relief could be awarded. -Ed.)

Thomas J. Billak v. Department of Homeland Security (Customs and Border Protection), EEOC Appeal No. 0120063300 (January 23, 2007). (Commission has no jurisdiction over determining appropriateness of converting an employee from Foreign Service Personnel System to General Schedule Pay System and Civil Service Retirement System after employee is transferred to another agency.)

Evelyn Olivera v. Department of the Army, EEOC Appeal No. 0120064732 (March 29, 2007). (Failure to promote complainant to the rank of Captain; failure of her chain of command to assist her in performing her military duties; denial of an opportunity to perform her military duties by her Commander; relief from her military unit after an incident with her unit administrator; and discharge from the military, on several protected bases, do not state a claim of discrimination under EEOC's regulations because the Commission has no jurisdiction over matters that relate directly to an individual's military status.)

Letha K. Ferguson v. Department of the Navy, EEOC Appeal No. 0120071694 (claim of sexual harassment not cognizable because complainant found to be an independent contractor and not a federal sector employee.)

Jay B. Bowers v. Department of Transportation (FAA), EEOC Appeal No. 0120071606 (March 29, 2007) (statement from management that complainant's attire did not fit the business casual requirement because he did not have his buttons done, while female employees were not required to meet the same standard, not actionable.)

(In the following decisions, the Commission found complainant's claims to be cognizable. -Ed.)

Edward E. Sears v. United States Postal Service, EEOC Appeal No 0120063728 (October 30, 2006) (complainant's claim that agency improperly prohibited him from using the closest accessible entrance/exit ; and that, as a disabled individual, he was not required to make a reasonable accommodation request for use of this entrance/exit was actionable.)

Rachel McCarthy v. Department of Homeland Security (Citizenship and Immigration Services), EEOC Appeal No. 0120062666 (January 23, 2007), request to reconsider denied, EEOC Request No. 0520070335 (April 5, 2007) (after complainant was accused by a named agency counsel of impermissibly being absent from a professional conference, she informed that agency counsel that complainant and her own attorney intended to amend her complaint to include a claim of retaliation; as a result of this information, the named agency counsel allegedly stated that, if complainant and her attorney amended her complaint to include charges of retaliation against the named agency counsel, it would result, inter alia, in their being reported to their respective state bars; the EEOC found that, if true, such a warning would reasonably be likely to deter protected activity and thus stated a claim of retaliation.)

Gary Volmar v. Social Security Administration, EEOC Appeal No. 0120064462 (January 16, 2007) (agency improperly fragmented complaint and, when viewed collectively, complaint reflected claim that complainant was downgraded from his service representative position and not allowed to perform its duties; sufficiently severe and pervasive to state actionable claim of harassment.)

Ernesta Jones v. United States Postal Service, EEOC Appeal No. 01A62250 (claim that supervisor informed complainant's representative that complainant should be careful filing an EEO complaint, in that the supervisor had assisted complainant in securing leave to attend the funeral of a "father figure," stated actionable claim of reprisal; if proven true, the statement contained a sufficiently-threatening tone so as to be reasonably likely to deter protected EEO activity.)

Agreement Void: Violates Older Workers' Benefits Protection Act (OWBPA) . The Commission found that the settlement agreement at issue did not meet the requirements of the OWBPA. The agreement made no reference to complainant's claim of age discrimination and did not indicate that complainant was waiving her rights under the ADEA. In finding the agreement void, the Commission noted that the agency improperly required complainant to waive her regulatory right to have her underlying claim reinstated as a remedy for breach of settlement. Carla H. Hill v. United States Postal Service, EEOC Appeal No. 01A60626 (May 17, 2006), request for reconsideration denied, EEOC Request No. 0520060862 (February 2, 2007).

Agreement Void: Held to Be Unenforceable . In the agreement, the agency was to provide complainant "fair consideration" for specific future positions and experience on an "ad hoc, as needed basis" in the areas of statistical analysis and modeling. The parties also agreed that there would be no retaliation against complainant for his EEO activity. On appeal, the Commission found all three provisions of the agreement to be unenforceable. The Commission stated that the agency was agreeing only to treat complainant in accordance with existing statutes and regulations and was not compelled to take any action or provide complainant with anything more than that to which he was already entitled. Further, the second provision was, at best, an illusory benefit, as any agency action was completely discretionary and offered no guarantee that complainant's services would be utilized. ArnoldE. Vagts v. Department of Homeland Security, EEOC Appeal No. 01A61926 (June 6, 2006), request for reconsideration denied, EEOC Request No. 0520060906 (October 26, 2006). See also, Connie L.Detar v. United States Postal Service, EEOC Appeal No. 0120063796 (October 31, 2006) (agency agreement to treat all employees equally void for lack of consideration since agency was required under law not to unlawfully discriminate; EEOC ordered agency to resume processing complainant's underlying complaint at point at which processing ceased.)

Substantial Compliance Found . Complainant and the agency entered into a settlement agreement in June 2004, which stated, in relevant part, that the parties agreed that complainant would receive a limited job duty offer in accordance with the agency's Employee and Labor Relations Manual (ELM) and would work from 0750 to 1600 with Friday and Sunday as non-scheduled days. Complainant alleged breach when his work location was temporarily changed to a trailer operation in the rear of the New Orleans Post Office in March 2006. The agency noted that due to Hurricane Katrina, employees from all stations throughout the city were shifted to work locations where there were high mail volumes. When the work load came under control, the employees were allowed to return to their regular duty stations. Complainant's duty hours and off days were not changed.

The Commission found that, in cases such as these, where an individual bargains for a position without any specific terms as to length of service, it would be improper to interpret the reasonable intention of the parties to include employment in that exact position ad infinitum. The Commission found that the agency had been in substantial compliance with the terms of the agreement for almost two years. Moreover, to the extent the agency may have breached the agreement by relocating complainant, the Commission found that the breach was cured when complainant was returned to his prior location approximately one month later. Paul C. Jensen v. United States Postal Service, EEOC Appeal No. 0120064559 (January 23, 2007).

Breach Found in Substance of Detail . Under the terms of the settlement agreement, complainant was to be detailed to a specific position for 60 days as a "cooling-off period." On appeal, complainant asserted that she still spent approximately 60 percent of her time working on tasks directly under the purview of her former Team Leader. As such, the Commission concluded that complainant's reassignment did not achieve the primary objective of the settlement agreement, that is, to provide complainant with a "cooling-off-period." Accordingly, the Commission found that the agency breached the settlement agreement and ordered the agency to reinstate the prior complaint for processing. Cheryl J. Riley v. Department of the Interior, EEOC Appeal No. 01A61936 (June 6, 2006).

Reasonable Suspicion: EEO Counseling Found Timely . Complainant initiated EEO Counselor contact on October 12, 2005, claiming discrimination based on sex and age when she was removed from her position as a Supervisory Nurse on August 22, 2005, and through several details assigned to work on administrative policies and procedures. The agency dismissed complainant's claim for untimely EEO Counselor contact, finding that the applicable time period began on August 22, 2005, when she began her initial four-month detail. Complainant contended, however, that she only became aware of the discriminatory aspect of her detail in mid-September, when she saw an email that made it obvious that the CEO of the facility intended to remove her permanently from her nursing supervisory position. The Commission noted that the documents in the record leading up to complainant's initial detail did not indicate that she would not return to her former position. As such, the Commission found that complainant established that she did not know nor should she have reasonably suspected discrimination until September 2005, when she saw the email. Moreover, the Commission noted that other events in late September or early October served to further indicate the allegedly-discriminatory nature of complainant's detail. Norma Condlin v. Department of Health and Human Services, EEOC Appeal No. 0120063677 (October 30, 2006).

Discrimination Found

In Zobel v. USPS,1the Commission found that the agency failed to meet its obligation to provide complainant, who suffered from tendonitis in her shoulder, with reasonable accommodation for approximately one month. According to the record, the agency initially accommodated complainant by allowing her to answer the telephone and perform some light secretarial work. After complainant was off of work for a period of time, her supervisor advised her that she could continue to be accommodated in the In-Plant Support area in which she had been working. When complainant attempted to return to work, however, she was told by another manager that she could not work in that area, and was reassigned to a different facility. The manager did not consult with complainant's supervisor prior to offering her the reassignment, and complainant asserted that the duties were outside of her restrictions. Specifically, complainant stated that she was required to retrieve packages weighing more than 10 pounds.

The Commission initially found that complainant, who could lift no more than five pounds continuously and 10 pounds intermittently, was an individual with a disability. Further, the evidence showed that complainant could have continued to work in the In-Plant Support area, and management was willing to accommodate her there. The Commission noted that while the agency took steps to accommodate complainant when it reassigned her, the efforts were not effective. Specifically, while the manager at that facility instructed complainant not to violate her restrictions and to ask for assistance with heavy items, help was not always available. Thus, the Commission concluded that the agency failed to reasonably accommodate complainant when it reassigned her.

In Duncan v. Social Security Administration,2 the complainant, who worked as a Mail Clerk, was diagnosed with bilateral carpal tunnel syndrome. The agency assigned complainant to light duty work. From 1998 through 2002, she was allowed to work at her own pace and to rotate between repetitive and non-repetitive tasks based upon her condition. During this time, complainant received positive performance evaluations. In 2002, complainant came under the supervision of new management officials, and was no longer allowed to rotate between duties. Complainant then began to experience severe pain, and asked her new supervisors to reinstate her prior accommodations. Complainant was advised that she needed to submit a written request for reasonable accommodation, which she did. Management, however, denied her request, indicating that they could no longer accommodate complainant's permanent work restrictions. Complainant was then placed in leave without pay status, after which she filed a formal EEO complaint.

On appeal, the Commission initially found that complainant was substantially limited in the major life activity of lifting. Complainant's physician restricted her from lifting over 20 pounds, and complainant said that she could not lift more than 10 to 12 pounds. Further, the Commission stated that, although complainant was unable to perform repetitive movements on a continuing basis, she was able to perform all of the essential functions of her position, and had received several awards while receiving reasonable accommodation. The Commission noted that complainant's new supervisors failed to explain the need for changing complainant's four-year practice of successfully accomplishing her job, and failed to provide any explanation for denying her request to return to rotating between duties. Instead, management attempted, unsuccessfully, to reassign complainant. The Commission found management's assertion that complainant was unable to perform the essential functions of her position to be unsupported by the record. Management did not specify what functions complainant could not perform, and the weight of the evidence showed that complainant was in fact able to perform all of the essential functions of her position. Finally, the agency did not offer any argument as to why it would have been an undue hardship to provide complainant with reasonable accommodation. Thus, the Commission concluded that the agency violated the Rehabilitation Act when it failed to allow complainant to rotate between duties.

The complainant, in Villanueva v. Department of Homeland Security,3 worked as a Customs Inspector, and sustained a job-related back injury. A physician subsequently restricted complainant from pushing, pulling, and lifting over five pounds, and advised him not to do any climbing. An Orthopedic Surgeon diagnosed complainant with degenerative disc disease, and complainant was placed on light duty. Approximately nine months later, the Surgeon advised complainant that he should change his work status in order to limit repetitive bending, lifting, and twisting, as well as prolonged standing and sitting in one position. Complainant requested that the agency reassign him to an administrative position. He applied for Import Specialist and Paralegal Specialist positions, and was placed on the best qualified list for both vacancies. The agency requested additional information from complainant and the Surgeon with regard to his request for accommodation, which complainant provided. The agency, however, denied complainant's request, and subsequently proposed to remove complainant from employment.

On appeal, the Commission determined that complainant was substantially limited in the major life activity of lifting, by virtue of his 15 to 20 pound lifting restriction. Further, while complainant was not qualified for his Customs Inspector position, the Commission stated that the agency should have considered reassigning complainant to another, vacant position. In this case, complainant provided evidence that he applied for two positions, and was placed on the best qualified list for both vacancies. Thus, the Commission found that complainant established that there were vacant, funded administrative positions for which he was qualified, and, as such, the agency violated the Rehabilitation Act when it failed to provide complainant with reasonable accommodation. In addition, the Commission noted that the agency delayed more than six months in responding to complainant's request for accommodation. The Commission stated that the agency provided no reason for the delay, and there was no indication that the agency took any action during that time. Thus, the agency failed to respond to complainant's request within a reasonable period of time.

The Commission also found, in Miller v. USPS,4 that the complainant was subjected to disability discrimination when she was denied reasonable accommodation. Complainant, a Letter Carrier, injured her back in 1989, and subsequently was seen by various physicians for her condition. She was placed on a number of restrictions, including lifting no more than 20 pounds, and no prolonged standing or sitting. Complainant filed a formal EEO complaint, alleging that the agency discriminated against her when, on numerous occasions, she was sent home and denied eight hours of work.

On appeal, the Commission initially found that complainant was substantially limited in the major life activity of lifting. In addition, the agency successfully accommodated complainant for approximately seven years. However, when the agency learned that complainant's workers' compensation status had ended, it placed her in a light duty status which did not provide her with eight hours of work on her scheduled days. The Commission noted that the change from limited to light duty had no impact on the actual work complainant was performing, and testimony showed that complainant was often sent home even though work was available. Further, the evidence showed that there were vacant, full-time positions within complainant's commuting area to which she could have been reassigned. Specifically, the Officer in Charge testified that there were likely vacancies in every craft, and that, even though Clerk positions had a 70 pound lifting requirement, that condition was not enforced, and other Clerks could not meet the lifting requirement. In addition, the Officer in Charge noted that there were some Administrative Clerk and Box Clerk positions which did not require lifting. The evidence showed that complainant performed a variety of duties of different positions within the agency. Thus, the Commission concluded that there were likely positions available during the relevant period for which complainant was qualified. The Commission further stated that the agency failed to show that providing complainant with a reassignment would have been an undue hardship.

The complainant, in Jambora v. USPS,5 had insulin-dependent diabetes and carpal tunnel syndrome. In March 2002, the agency reassigned complainant from the day shift to the evening shift. Complainant stated that she advised the agency that the change would adversely affect her health, and the record showed that she submitted evidence to support her request to remain on the day shift. Complainant ultimately applied for disability retirement. On appeal, the Commission initially found that complainant was an individual with a disability, as she was substantially limited in the major life activity of eating. Specifically, the record showed that complainant must constantly pay strict attention to what and when she eats, and monitor her blood sugar. Complainant also takes insulin. Further, the Commission found that complainant was qualified, because she performed the duties of her modified position on the day shift for a number of years without any apparent problems. Despite being aware of complainant's condition and her need to work the day shift, the agency reassigned her to the evening shift. The Commission rejected the agency's assertion that allowing complainant to remain on the day shift would have violated the seniority provisions of the collective bargaining agreement. The Commission noted that the position that complainant formerly held was abolished, and no other employee had the right to bid on her modified position. As such, the evidence did not show that any seniority rights would have been violated by allowing complainant to remain on the day shift. The Commission found no evidence that providing complainant with accommodation by allowing her to remain on the day shift would have been an undue hardship for the agency. Thus, the agency violated the Rehabilitation Act.

The complainant, in Bratsch v. USPS,6 was hearing impaired. He asserted that the agency held safety talks on five occasions without providing an interpreter. Some of the instances involved emergency safety talks regarding the suspected presence of anthrax in agency facilities. According to the record, complainant had filed earlier EEO complaints raising the same issue. On appeal, the Commission found that complainant was a qualified individual with a disability, because he is substantially limited in the major life activity of hearing, and is qualified to perform the essential functions of his job with or without accommodation. Further, the Commission stated that for the agency to deny complainant information regarding possible health risks was inexcusable. The Commission noted that, although the agency indicated that other employees were available to assist complainant, there was no information as to the manner in which complainant was assisted, and whether it was an effective accommodation. In addition, although the agency may have provided complainant with a hard transcript of some meetings, that was not effective, as complainant was denied the opportunity to ask questions or participate in discussion. Finally, the Commission found that the agency failed to explain why it would be an undue hardship to provide interpreting services on complainant's shift. Thus, the agency was found to have violated the Rehabilitation Act when it denied complainant an interpreter.

In Yost v. USPS,7 complainant, who was hearing impaired, filed a complaint, alleging that the agency failed to provide him with an interpreter. Specifically, complainant stated that the agency required employees to view a film on bone marrow donation that was not closed captioned, after which, there was a discussion and question and answer session. In addition, the agency required employees to view a film on sexual harassment that was also not closed captioned. Finally, a supervisor conducted a "stand up" talk without providing an interpreter. The Commission initially found that complainant, who had been deaf since birth, was substantially limited in the major life activity of hearing. The Commission rejected the agency's assertion that complainant was able to compensate for his hearing loss by reading lips, reasoning that complainant's ability to read lips does not change the fact that he is unable to hear. Further, the Commission noted that an agency's obligation to accommodate a deaf employee is not diminished when the employee has the ability to read lips. The Commission reiterated that, for a severely hearing impaired employee who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies, or assignments, and every disciplinary action, as well as at any crucial time in the employee's career, whether or not the employee requests an interpreter. In this case, the meetings were mandatory, and complainant was required to attend. The Commission stated that neither allowing complainant to later view the films with an interpreter, nor providing a written copy of the issues discussed at the stand up meeting was an effective accommodation, as complainant was denied the benefit of the questions and comments that arose during the larger group exchanges. Finally, the Commission concluded that the agency failed to show that it would have been an undue hardship to provide an interpreter. Thus, the Commission found that the agency failed to provide complainant with reasonable accommodation.

No Discrimination Found

The complainant, in Pernell v. National Archives and Records Administration, 8filed a formal EEO complaint, alleging that she was denied reasonable accommodation for her asthma. Complainant sent a message to her supervisor asking that her workstation be moved to another location, because her present location was affecting her breathing. Complainant's supervisor denied the request, but offered to provide complainant with a face mask. The supervisor stated that there was no other location for complainant, and that an environmental study had shown normal levels of mold and dust in complainant's work area. On appeal, the Commission found that, even assuming complainant was an individual with a disability, she failed to show that the agency denied her reasonable accommodation. Specifically, the Commission noted that, in responding to complainant's request for accommodation, the agency offered complainant the use of a face mask. The record contained no evidence that complainant communicated to the agency that the mask would not effectively address her breathing problems, and, in fact, complainant never made such an assertion. Thus, complainant failed to establish that she was subjected to disability discrimination.

In Struthers v. Department of the Navy,9complainant asserted that the agency failed to reasonably accommodate her when it refused to allow her assistance dog to accompany her to work. Complainant had depression and social anxiety. She stated that she is more comfortable when the dog is with her, as he can sense when she is going to have a panic attack. Complainant also noted that the dog is trained and certified as an assistance animal. On appeal, the Commission found that, even assuming that complainant was a qualified individual with a disability, she failed to establish the requisite nexus between her alleged disability and the accommodation request. Specifically, the Commission stated that there was insufficient evidence to support the claim that complainant's impairment adversely affected her ability to interact with others at work. The record showed that complainant's social phobias and anxiety were triggered by situations that did not arise in her job, that is, when she encountered crowds or strangers at work. In fact, complainant stated that she was able to interact with her co-workers even when she was upset. Complainant also testified that she did not experience panic attacks at work, and the agency was willing to accommodate complainant by allowing her flexibility to use sick and annual leave when she needed, or take breaks when she felt anxious. Thus, the Commission concluded that there was insufficient evidence to find that the agency's failure to allow complainant to bring her dog to work constituted an unlawful failure to accommodate complainant's disability.